FAMILY LAW

Appeals In The Ancillary Relief Jurisdiction Cordle v Cordle [2001] EWCA Civ 1791 (2001) The Independent, 17 November; (2001) The Times, 7 December, CACordle v Cordle is a troubling decision because the Court of Appeal (consisting of Dame Elizabeth Butler-Sloss, President of the Family Division, and Lord Justice Thorpe) held that an appeal from district judge to circuit judge must proceed on lines analogous to appeals to other appellate courts.

In so holding, they do not seem to have directed themselves as to the law set out in the Family Proceedings Rules 1991 (FPR), rule 8.1(3).

No reference to this rule appears in their judgments.

What they were seeking to do was review the law after Marsh v Marsh [1993] 1 WLR 744, [1993] 1 FLR 467, CA and, as they put it, to abandon the 'rule in Marsh v Marsh'.

They wanted to harmonise ancillary relief appeals from the district judge with section 55 of the Access to Justice Act 1999 (which deals with civil appeals, but only applies to family proceedings when they approach the Court of Appeal - Civil Procedure Rules 1998, rule 2.1).The difficulty is that Marsh drew attention to FPR, rule 8.1(3) which states clearly that when hearing an appeal 'the judge may exercise his own discretion in substitution for the district judge'.

Rule 8.1(3) is unaffected by section 55 or the Civil Procedure Rules 1998.

It is difficult to see how the Court of Appeal can overrule its provisions and impose the requirement that an appeal be allowed only where there is procedural irregularity or the district judge 'is plainly wrong' (see G v G (Minors: Custody Appeal) [1985] 1 WLR 647, [1985] FLR 894, HL the classic case on this point).

Circuit judges will now be faced with the clearly stated view of the Court of Appeal in Cordle on the one hand, and the wording of a rule explained by another earlier Court of Appeal in Marsh on the other - not a happy state of affairs.The helpful explanation of White v White [2001] 1 AC 596, [2000] 2 FLR 981 given by the court is a little lost.

There is no rule of equality of outcome, explained Lord Justice Thorpe, only a 'cross-check ...

to be a safeguard against discrimination'.

The court must first look to fairness by applying the section 25(2) criteria of the Matrimonial Causes Act 1973.

Housing is an important factor.English talaq and dissolution of marriageSulaiman v Juffali (2001) The Times, 28 November, Mr Justice MunbyA bare talaq - the divorce vow uttered by a husband under Islamic Sharia law - pronounced in England does not operate to dissolve the parties' marriage, even if it complies with the necessary religious formalities of Sharia law.

To be effective in the British Isles a dissolution can be effected only by a court of civil jurisdiction.

This remained the case, despite the fact that both parties were nationals of, and domiciled in, Saudi Arabia.

The talaq had been pronounced in England.Public funding - amendments to financial regulations - new financial eligibility ratesThe Community Legal Service (Financial) Regulations 2000 have been amended with effect from 3 December 2001 to provide a new basis for assessment of civil legal aid in most instances.Income support and income-based job-seekers' allowance are the only benefits passporting to all forms of help and representation.

For legal help disposable capital must be below 3,000, and disposable income below 601 per month.

For most other forms of help and representation disposable capital must be below 8,000; though if an applicant has any capital above 3,000, then, as before, the commission takes the excess.

Gross income above 2,000 per month (all figures are monthly with the new scheme) prevents any form of legal representation being available.

Below this sum income is assessed with many of the old deductions - though not all - being applied to calculate disposable income.

Disposable income of less than 260 leaves the applicant exempt from contribution.

Above an income of 260, contributions are banded as disposable income rises to a limit of 683.

Above this figure funding is no longer available.Statutory charge - new exemptionsSince 1973 there has been an exemption from the charge for the first 2,500 of any property recovered and preserved in most family proceedings.

The figure was fixed at a time when 2,500 would buy a modest home.

The concept of index-linking has clearly passed by the Lord Chancellor's Department - what freehold property could one buy today for 2,500? But let us not sneer.

The exemption increased from 3 December 2001 to 3,000 in respect of property recovered or preserved in most family proceedings.

As far as can be deduced from the wording of the amendment regulation (Community Legal Service (Financial) (Amendment No 3) Regulations 2001, regulation 22, which creates a new regulation 44(1)(d) in the Financial Regulations 2000), the exemption applies to all cases from now on where the charge applies.Certainly, the new exemption applies where the charge is postponed.

(The new LSC Decision Making Guidance (paragraph 2.2.5) refers unhelpfully to 'if the application was made on or after 3 December 2001.' Application for what: public funding, a court order, payment of costs?)InterestUntil 31 March 2002 interest will be fixed at 8%.

From 1 April 2002 it will vary to 1% above the Bank of England base rate.

After that, it will be linked to that base rate, with annual changes on 1 April in each successive year but only if this varies the existing rate by one percentage point or more.By David Burrows, David Burrows, Bristol